The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Friday, 29 September 2017

Brexit Negotiations Round 4

Following on from the Prime Minister's speech in Florence, Round 4 of Brexit negotiations have concluded. The Secretary of State's close of talks statement is HERE and the EU Negotiator's (Michel Barnier) statement is HERE. The Prime Minister's speech was said by Mr Barnier to have "created a new dynamic in our negotiations." Talks will resume on 9th October.

In his Round 4 closing statement, Mr Davis referred to publication of an
updated table showing many areas of agreement. For this see Department
for Exiting the EU - Joint Technical Note

The Florence Speech was notable for statements that the UK will leave the EU on 29th March 2019 and will not be a member of either the Single Market or the Customs Union. Mrs May also ruled out membership of the European Economic Area (EEA). Nevertheless, both the UK and the EU would benefit from a period to "adjust to the new arrangements in a smooth and orderly way" and a "strictly time-limited period" of around 2 years ought to apply. Such a transition period could be agreed under Article 50 and the framework for the period would be the "existing structure of EU rules and regulations." In the practical world, such a period of adjustment makes complete sense but it will not be to the liking of some politicians.

Article 50(3) tells us when the Treaties will cease to apply and it is either the date of entry into force of the withdrawal agreement or, failing that,
two years after the notification. The European Council, acting unanimously, is empowered to extend this period.

Negotiating
guidelines on the Brexit withdrawal agreement issued by the European Council (EU27 States’ leaders) state: "To the extent
necessary and legally possible, the negotiations may also seek to determine
transitional arrangements which are in the interest of the Union and, as
appropriate, to provide for bridges towards the foreseeable framework for the
future relationship in the light of the progress made. Any such transitional
arrangements must be clearly defined, limited in time, and subject to effective
enforcement mechanisms. Should a time-limited prolongation of Union acquis be
considered, this would require existing Union regulatory, budgetary,
supervisory, judiciary and enforcement instruments and structures to apply."

It therefore remains to be seen precisely what is agreed regarding transition (or adjustment) but it appears that the EU will almost certainly insist that the Court of Justice of the EU (CJEU) retains jurisdiction during any agreed period. Escaping the clutches of the CJEU is a "red line" for some UK politicians but it is necessary to ask what would be the point of devising new dispute resolution mechanisms for a time-limited period.